A/HRC/14/46
orders an action that would violate national law or international human rights law.
These laws also establish procedures to hold individuals to account for such
violations.
23.
States ensure that employees of intelligence services are held to account for any
violations of the law by providing and enforcing sanctions for particular offences. This
serves to promote respect for the rule of law and human rights within intelligence services.
Many national laws regulating intelligence services include specific sanctions for
employees who violate these laws or other applicable provisions of national and
international law.73 Given that many of the activities of intelligence services take place in
secret, criminal offences (perpetrated by employees) may not be detected by the relevant
prosecutorial authorities. Therefore, it is good practice for national law to require the
management of intelligence services to refer cases of possible criminal wrongdoing to
prosecutorial authorities.74 In cases of serious human rights violations, such as torture,
States are under an international legal obligation to prosecute members of the intelligence
services.75 The criminal responsibility of employees of intelligence services may be
engaged not only through their direct participation in the given activities, but also if they
order or are otherwise complicit in such activities..76
Practice 17. Members of intelligence services are legally obliged to refuse superior
orders that would violate national law or international human rights law.
Appropriate protection is provided to members of intelligence services who refuse
orders in such situations.
24.
It is good practice for national laws to require members of intelligence services to
refuse orders that they believe would violate national law or international human rights
law.77 While this provision is more common in laws regulating armed forces, several States
have included it in statutes regulating their intelligence services.78 A requirement for
members of intelligence services to refuse illegal orders is an important safeguard against
possible human rights abuses, as well as against incumbent Governments ordering
intelligence services to take action to further or protect their own interests. It is a wellestablished principle of international law that individuals are not absolved of criminal
responsibility for serious human rights violations by virtue of having been requested to
undertake an action by a superior.79 Hence, to avoid individual criminal liability, members
of intelligence services are required to refuse to carry out any orders that they should
understand to be manifestly unlawful. This underlines the importance of human rights
training for intelligence officers because they need to be aware of their rights and duties
under international law (see practice 19). In order to promote an environment in which
human rights abuses are not tolerated, States provide legal protections against reprisals for
members of intelligence services who refuse to carry out illegal orders.80 The obligation to
73
74
75
76
77
78
79
80
GE.10-13410
Croatia (footnote 2), arts. 88–92; Romania (footnote 15), arts. 20–22, Argentina (footnote 2), art. 42;
Bulgaria (footnote 15), art. 88(1), 90 & 91; South Africa (footnote 23), arts. 18, 26.
Canada (footnote 6), sect. 20 (2–4).
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, arts. 4
and 6.
Rome Statute, art. 25 (3) (b-d), Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, art. 1.
Hungary, Act on the National Security Services, sect. 27; Lithuania (footnote 9), art. 18; ECOWAS
Code of Conduct, art. 16.
Bosnia and Herzegovina (footnote 6), art. 42; South Africa (footnote 23), art. 11 (1).
Rome Statute, art. 33; Geneva Conventions I–IV; Commission on Human Rights (footnote 65),
principle 27; see also Lithuania (footnote 9), art. 18.
Bosnia and Herzegovina (footnote 6), art. 42.
15
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